State of the Fintech M&A Landscape: Market Trends and Regulatory and Enforcement Considerations

Three months into 2023 and the fintech landscape looks wildly different than this time one year ago. Global economic uncertainty clouds the fintech industry, with it facing challenges from rising interest rates, significant layoffs in the tech space, and high visibility of cryptocurrency bankruptcy.

Impact of (Continuing) Rising Interest Rates

As a result of a period of high economic activity fueled by low interest rates and “easy money,” upward pressures were placed on prices. In order to control inflation, the Federal Reserve incrementally has been increasing the interest rates, with levels at 0.08% in January 2022 skyrocketing to 4.57% in January 2023. Rates are anticipated to increase in the near term. The fintech industry is being impacted in a variety of ways:

• Decreased demand for services, as higher prices force corporations and consumers to scale back.
• Reduced employment and mass layoffs are seen across the board, hitting Big Tech companies all the way down to startups. However, looking to the 2008–2009 financial crisis, one silver lining was that a number of individuals who lost their tech jobs, saw an opportunity in the disruption market and a similar situation could be seen in today’s industry-wide layoffs
• Less demand for assets that are deemed riskier is leading to crypto bankruptcies. In a stark statistic from CoinGecko, which reported on the number of deactivated cryptocurrencies on their platform, more than 4,000 cryptocurrencies did not make it to their two-year marker.
• VC capitalists invested $57.6 billion globally into enterprise and consumer fintechs in 2022, a reduction in fintech deal activity from a high of $100 billion according to Pitchbook. Nonetheless, both VC deal value and deal count in 2022 remained above pre-pandemic levels, suggesting investors continue to see long-term opportunities within the sector.

Consortium Deals: An Alternative Financing Method

A financing trend gaining popularity among fintech transactions is forming a consortium-structured fintech company, either funded by a group of banks or other financial service firms, or such a company could be assembled by one or more firms, based on identifications of a particular need. Structured either as a corporation or as an LLC and often preferred due to its allowance of great economic and governance flexibility, there are a number of advantages and challenges associated with this method:

Advantages

• Funding is based on strategic as well as financial and commercial rationale.
• Investors are likely to be less sensitive to valuation or market sensitivities.
• The fintech consortiums allow the investor groups early access to customers, revenue, and referrals to other industry participants for additional acquisitions or revenue sources.

Challenges

• Misalignment of prioritization, pricing, product fit and roadmap, and commercial and growth interests of core customers and non-customer stockholders in investor syndicate
• Differences in exit/sale/liquidity strategy
• Complexities around designing non-cash equity incentives for recruiting and retaining management
• Varying strategies around subsequent investment rounds, such as identifying syndicate partners, trade-off between valuation and commercial considerations, and governance structures and policies
• Antitrust and regulatory compliance considerations

Enforcement and the Importance of Regulatory Diligence

When working on a transaction, parties should consider not only the transfer of value, but also the transfer of regulatory and enforcement risk. Over the past two years, there has been a marked increase, particularly by the CFPB and FTC, and attorneys general and banking regulators at the state level, in looking at assisting and facilitating liability, secondary actors, and successor liability. This has been magnified by recent developments at the US Department of Justice that are being replicated by most federal and state agencies, the Self-Reporting Policy that places a premium on early and full disclosure. Due diligence not only has to be thorough and complete, it needs to be done right.

Regulatory Considerations

In this current environment where valuations have dropped dramatically, opportunities may emerge for traditional incumbents to strategically invest in companies at more favorable valuations. One benefit to these types of investments is that it allows investment into a new business line without having to build it from scratch. Diligence is an essential component of these deals as it can determine the associated risks and if there is a way to mitigate or eliminate those risks.

Some questions to consider when asking about the target entity, including determining if it is registered with any US regulatory agency, are (1) has it been subject to regulatory examinations, and, if so, what were the results and have they been resolved, (2) what business activities is it considering for the future, and (3) who is responsible for regulatory compliance after the completed transaction. Depending on the results of regulatory diligence, an investor may be able to seek specific representations in its agreement to mitigate potential risks and associated costs.

Learn More

Watch Morgan Lewis’s on-demand M&A Academy session for more information on M&A market trends in the ever-changing fintech landscape.